Judicial authoritarianism

When courts protect the interests of a government, not individual rights.

Prime Minister Sushil Koirala has left for the US for medical treatment. He asked the first deputy PM, Bamdev Gautam, to officiate as PM in his absence, but with a warning to not take any major decision. Koirala belongs to the Nepali Congress (NC) and Gautam to the Communist Party of Nepal-Unified Marxist Leninist (CPN-UML). His warning makes clear the widening rift between the two major coalition constituents, less than seven months after they formed government promising to deliver the constitution within a year.

They have hardly spoken in one voice on the major features of the future constitution, although the Constituent Assembly has begun hearing members. The model of federalism, and that of governance and the electoral system, continue to divide the House. But this weak government seems to be giving in too much to pressure from constituent parties and other organs of state for its own survival.

The Supreme Court (SC), an object of unprecedented controversy now — mainly on the appointment of eight judges, with the media digging up scandals allegedly involving some of them — appears to be vindictive against the media. The government is planning to restrain the media from making comments on judgments and judges’ conduct, giving judges sweeping powers of punishment for contempt.

The bar and the media are already up in arms against the move, but the government appears helpless as it needs the SC by its side as many of its decisions have been challenged in the court. After all, since March 2013, Nepal’s judiciary and its major parties have been working together, ignoring protests from the bar and civil society that the erosion of the judiciary’s independence would weaken the move to consolidate democracy.

The appointment of the eight judges, allegedly following an understanding between the NC and UML, is the fallout of an earlier experiment — the appointment of former chief justice Khil Raj Regmi as executive head.

This collaborative experiment and the appointment of the controversial judges, with alleged political affiliations, has instilled a confidence in the government that the judiciary is not to be feared but influenced, or even manipulated. The government missed the deadline fixed by the SC last month to nominate 26 legislators against the “nominees’ quota” within a fortnight. It moved a review petition only after the deadline passed, hoping the SC would continue to be lenient. At the same time, the government is arming it with more powers — and more protection from the media, bar and civil society — by bringing in stringent laws.

Judicial activism, in the public and national interest, has been admired and endorsed in many places, including South Asia. But what is being witnessed in Nepal is a sort of judicial authoritarianism or fundamentalism, not in the aid of individual rights and dignity but for the protection of a government it has collaborated with in the past, all in the name of expediting the constitution-writing process.

Chief Justice Damodar Sharma had instructed his fellow judges, soon after the appointment of the eight new judges, to screen everything the media reported about the judges and haul them up for contempt. Circumstantial evidence has now established that the government’s recent move to try the media for defamation was done to appease the SC.

While the media have become victims of intolerant executives in many countries, it is the judiciary — the last hope of justice — that poses a threat to media freedom in Nepal. After all, the separation of powers between the judiciary and the executive has already vanished in Nepal, and the judiciary seems to have acquired the same level of intolerance towards media criticism as the executive displays at times.

This is happening when Nepal is undergoing a constitution-making process, promising a constitution with democratic values. A vulnerable and yet ambitious coalition and an SC that has tested political power appear to be collaborating against the basic principles of constitutionalism and democracy. A weak and vulnerable political leadership and a politically ambitious or collaborative SC are not the best guarantee of a democratic constitution.